from the good-for-him dept

A bunch of news reports are highlighting a story in which New Zealand District Court Judge David Harvey supposedly called the US "the enemy," and are pointing out that he's the judge overseeing the extradition case for Kim Dotcom. Upon seeing the headline, I was pretty amazed as well, figuring that might cause problems with the case, but the details show that his comments were not about the US in general, or about the Dotcom case. Rather, they were in response to the TPP negotiations that we've been following closely -- and how the TPP will take away certain rights from New Zealanders, like the ability to get around region-specific DVD players:

It is legal in New Zealand to use methods to get around these regional codes and make the DVDs watchable but Judge Harvey said the TPP would change this.

"Under TPP and the American Digital Millennium copyright provisions you will not be able to do that, that will be prohibited... if you do you will be a criminal - that's what will happen. Even before the 2008 amendments it wasn't criminalised. There are all sorts of ways this whole thing is being ramped up and if I could use Russell [Brown's] tweet from earlier on: we have met the enemy and he is [the] U.S."

His point is that the US is trying to expand copyright protectionism and curtail current rights of New Zealanders, blocking them from doing something that is currently legal and seems perfectly reasonable (getting around regional restrictions to watch legally purchased DVDs from other regions). It's a good thing that more people are seeing the problems of American extremism on copyright law, but I wonder if this will be used (as it appears to be in the press) to hit back on him for his role in the Dotcom case.

Reader Comments

In the current climate, being opposed to gratuitous expansion of IP laws, even where such expansion involves curtailing of hard won freedoms is judged as being pro-piracy.
So, it is hardly surprising that a comment relating to excessive expansion of IP rights will be used by copyright maximalists to claim bias under current legislation.
Not making sense is a major part of IP maximalism.

We don't know much about the TPP contents, but it is no surprise that the MPAA would try to use TPP to protect its antiquated and crumbling regional windowing model. It is just another example of the IP industry's love of self-destructive behavior.

OH, COME ON!

Why can't you see that stepping over that imaginary line in the dirt SHOULD make it so that you can't watch the DVD you just bought. Are you so stupid that you can't see why that makes sense? (Insert facepalm and sarcasm mark here).

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I think the climate is changing. The vast excesses of the IP maximalists are beginning to be recognized worldwide.

A mechanic can't play the radio in his garage because public performance.

A collection society threatens lawsuit unless you pay extortion fee -- even though you don't play any music represented by that collection society.

Music and movies that are wildly successful yet strangely never profitable.

Music licensing for radio is at one rate. Music licensing for internet radio is designed to destroy internet radio. Then there is satellite radio.

You can't buy a DVD across the border and bring it home and watch YOUR disk in YOUR player. Or on YOUR computer if it runs a Free operating system.

Can't have DVD jukeboxes because that would bring the convenience of on-demand right into your home. Copyright law requires some special kind of free for the convenience of on-demand. In fact it requires a special fee for anything new, useful or just plain desirable.

The maximalists still, in the 21st century, believe that copying your own music CD's to your own mp3 player is or should be a crime punishable by ruining your life and future. It's that convenience thing again. A solid state player that is tiny is something that copyright law requires you pay an extra fee for -- if you can get it at all. After all, copyright requires carving up music into a hundred different "rights" like a special "solid state device mechanical performance" right or something.

The music and movie industry need absolute control of the internet. They must be able to shut down anything at will. No due process. No recourse. All expenses to be paid by ISPs. And they assure us this would never be abused. (Didn't we hear that when the DMCA was being negotiated?)

These people are against any concept of fair use. No such thing as fair use. The only use is paid use -- and that is per pair of ears listening.

The maximalists cannot determine whether something online is infringing or not, yet expect Google to be able to do so. (Example: copyright owner taking down their own promotional videos or their own artists' music.)

The internet enables mass communication about whatever anyone wants to talk about, what interests people. This is in a way that one-to-many broadcast media owned by concentrated wealth could never enable. That is why the world is waking up to the excesses of IP.

The sooner IP is dead the better.

Then I could get started on the patent system. Or twisted concepts of what trademark is thought to mean instead of simply protecting consumers from fraud.

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Well you "buy" the music for your left ear, but need a synchronization license for the right ear. That way they can still call it a "Sale" but also treat it like a license... well as long as you want to listen in stereo... and you don't even want to know how many tree's we had to kill to print the license to listen in surround sound.

Speak out with your Wallets and Censor Big Content from them.Plenty of good DIY, INDIE, and kickstarter like Websites.
TPP is written on toilet paper.Great example of the USA forcefeeding BS IP Laws on the World.
Copyright Maximalists need to go down and so do the Patent Trolls.

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But with the latest license you can only listen to the music with both ears if you are in a "music consumptions zone" predsignated in your home that must have been inspected by an "aural consumption specialist".... oh and only on a Thursday at 3.13am and only for 18mins and 12 seconds.

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Isn't that ironic

So it's legal to ignore country codes in New Zealand (good for them!), however; they still put country codes on DVDs meant for NZ. That's why I had to watch "The Almighty Johnsons" by other means instead of BUYING the DVDs (lost sale) like I would have preferred.

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"I think the climate is changing. The vast excesses of the IP maximalists are beginning to be recognized worldwide."
"The internet enables mass communication about whatever anyone wants to talk about, what interests people. This is in a way that one-to-many broadcast media owned by concentrated wealth could never enable. That is why the world is waking up to the excesses of IP."

I would like you to be right, but where are you seeing the world waking up to the excesses of IP.
The comments on techdirt are exactly the wrong place to draw that conclusion from.
Ask the majority of people about whether or not a business has to pay licence fees to play music or radio and not only will the majority not know, they also won't care.
Only those who understand that this kind of stuff will affect them directly will care at all and they have to know about it first.

There is a lot of news about the megaupload thing, but for example in Britain, rnbxclusive.com was taken down in February this year by the UK's Serious Organized Crime Agency in a very public manner with all kinds of bizarre claims ( http://www.techdirt.com/articles/20120214/11083717758/uk-now-seizing-music-blogs-with-american-domai ns-over-copyright-claims.shtml )
and not one word has been heard about it since.
No reports that I am aware of, of any charges actually being filed, no court case, nothing and of course the website is still gone.
Now if that happened with a tv channel, people would notice, if it happened with a newspaper chances are people would notice, but even in this rarified environment here, where people are aware of copyright issues and IP overreach and regulatory capture, no one has followed up on this, no one is talking about it at all.

Re: Isn't that ironic

Region codes are the evolution of a solution to a distribution problem that no longer exists.

It's ridiculous but kind of geeky too, in the math sense.
You know the kind of thing,
steps to make tea (shortened)
Take empty kettle.
Fill kettle with water from sink.
Return kettle full of cold water to it's place near a power socket.
Plug kettle in and switch on to boil water.
etc. etc. Make tea.

But what happens when the problem changes,
when the kettle already has water in it to start with.
A mathematician (of a certain type) may well start by emptying the kettle, reducing the problem to one that has already been solved.

Global distribution is no longer the problem of expensive film to be transported around the globe, but that problem was already solved by creating regions. The industry want's to keep the solution even though it makes no sense in the one global market where distribution is close to being a non issue that the internet has created.

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But if you are deaf in one ear you still have to licence both ears because that is how their licensing package is set up. Just be glad they have not yet implemented eye licences because you might read the title of the song.

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These are major stories that are completely ignored by the press; tv and print. "It's too complicated" doesn't explain it. Focusing on the right or left of issues doesn't explain the void. Yet the average person is quite interested once there's an explaination of how it affects them -not "morality" but practical everyday stuff.

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> Ask the majority of people about whether or not a
> business has to pay licence fees to play music or radio
> and not only will the majority not know, they also
> won't care.

Asking that question, and then telling them the correct answer suddenly seems to get many of them to care. Especially when they hear of the excesses of collection societies.

Especially when they hear of collection societies that collect for music that they don't even represent.

Especially when they hear that a business owner got sued because they didn't proactively seek out all possible collection societies, and didn't pay one of them. (What - there's not a single place to go to pay the extortion license?)

I'm not saying the majority of people understand the issues. I'm simply saying the climate is changing. The people who do understand the issues are beginning to be significant enough in number and have the ear of the right people that it is not impossible to see the broken system getting fixed.

Especially in countries where it is not yet broken, but the IP maximalists are trying to make it broken.

if the US can use anything that may, in the slightest way help them or screw further Dotcom and/or Megaupload, they will do so. they dont have any concrete evidence against him of wrong doing and dont have the balls to admit that. instead, they will keep his assets frozen and his, as well as countless innocent users, data locked away for as long as possible or until they can get it destroyed, along with his chance of disputing 'evidence' against him

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Except avoiding Hollywood has been spun into "lost sales due to piracy" that many stupidly believe. Tech Dirt, awards, everywhere has pointed out that independent media is far out selling Hollywood produced BS. That fact seems to get lost in every serious arguement I've seen or read.

Re: Re: Isn't that ironic

It's funny how they go backward instead of forward.

Embrace the legacy region codes and apply them to digital.

Instead, they could abandon the region codes and solve their film distribution problem using the internet. Upgrade their entire projection infrastructure to digital. Yeah, it's a big expensive project. If they get started in, say, 2004, they would get done by . . . um, they would already be done by now!

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It's so obvious that the U.S. never intended to give Dotcom a fair trial that it's scary. There are questions on whether the DOJ even veted the case before proceeding. It's an embarassment. I'm glad NZ judge is giving the case a semi-serious look rather than the rubber stamping UK seems to do.

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I've been saying for years that these people won't be satisfied until they have mandatory brain implant chips at birth that automatically charge your credit card for everything copyrighted that you see or hear -- even innocently and unintentionally.

This is merely another example of why we need even stronger copyright laws. Judge Harvey's blatant attempt to profit from the wholesale copying of our founding fathers' stand against state sponsored corporate profiteering is frankly offensive. How long will the rest of the world continue to reap the rewards of our ancestors' struggle against the tyranny of the British East India Company?

Such morally reprehensible behavior only underscores the debt owed by citizens of every free country around the world for the efforts of those great Americans. I shudder to think what would become of our allies should we find ourselves unable to sustain our output of freedom to the rest of the world. And yet these people who owe us so much, who relied on us to keep the world safe as recently as the late 1980s, have the arrogance to declare that the world has changed and we must change with it.

I reject that notion. The decline in US geopolitical and economic influence which has been building since the end of the Cold War threatens nothing less than the collapse of the free world as we know it. It is well and good to praise the rise of democracy in Eastern Europe, but who among these fledgling democracies has the power to stand up to the likes of China? And can we rely on the people of India or Brazil to spend tens of billions of dollars on consumer goods in support of capitalism? If we learned nothing else in the latter half of the 20th century, we should have learned this. As the US goes, so goes the world.

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You're talking nonsense. We've been through this argument in Rojadirecta, and to refresh your memory, I'll quote from Mark Lemley's brief (fn.9 on p.30)

Those who link to infringing material may sometimes face civil copyright liability for contributory or other indirect copyright infringement. But that cannot help the government here, because there is no federal criminal offense of contributory or indirect copyright infringement. That is because there is no statutory basis for the theory of criminal contributory infringement, and federal crimes “are solely creatures of statute.” Liparota v. United States, 471 U.S. 419, 424 (1985); accord United States v. Lanier, 520 U.S. 259, 267 n.6 (1997) (“Federal crimes are defined by Congress, not the courts . . .”). Secondary liability in civil copyright law is a common law creation that finds no support in the text of the copyright statute. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984) (“The Copyright Act does not expressly render anyone liable for infringement committed by another.”); Demetriades v. Kaufmann, 690 F. Supp. 289, 291-92 (S.D.N.Y. 1988) (“Federal copyright law, unlike patent law, does not expressly create any form of derivative, third-party liability.”). Accordingly, the reach of the criminal copyright statute—which is predicated on liability for acts proscribed by the copyright statute—does not extend to contributory infringement.

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I want it to be changing, but the biggest success we've had so far, is temporarily derailing a large expansion in one go.
The pushing from the maximalist side is constant and when one line of attack gets derailed they still have multiple other fronts open.

Look, for example, even on techdirt where the new Canadian copyright legislation is hailed as having some good parts, while introducing digital lock anti circumvention; digital locks being, technology that can and will used to bypass and render null and void much of what is being praised in C-11.

Where are even the failed bills that attempted to narrow the reach of IP.
Where in government is there a call for a full review of IP laws based on what their purpose is supposed to be and whether the current or proposed legislation will help or hinder the purpose.

In many ways, the hope of those who oppose the overreach, is that the overreach will go so far as to actively, obviously and egregiously impinge on the lives of the majority of people so that they will start paying attention and start asking their representatives why legislation is being passed and trade agreements negotiated to resolve problems that haven't actually been determined to be problems of any kind.

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"pointed out that independent media is far out selling Hollywood produced BS. That fact seems to get lost in every serious arguement I've seen or read."

It just gets spun into the argument that as Hollywood traditionally outsells independents the fact that they are no longer doing so is proof of the effects of piracy on their sales.
Almost every big studio movie is available in many different ways infringing ways online, not necessarily every independent films is. Ditto with music.

They of course also, accidentally, fail to notice that the levels of infringement have a direct relationship to the sales, not an inverse one as you would suspect from their crying about piracy.
Once again for old times sake, Avatar most pirated movie of 2009, also had the highest box office receipts for decades and broke records in both dvd and bluray sales.
Chances are, if your movie is not being pirated, it's not selling either.

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Yup, it failed in Mexico and they signed up to it.
It failed in the EU but the key elements are likely to be signed up to in a Canade-EU agreement.
People don't have the attention span to keep on this, we need people to tell their representatives what they want and to mean it, if their representatives don't deliver, then they don't get elected again.
If they do get elected again, then they know, we didn't mean it.

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That's a problem all over, but the very worst place is the U.S. because the two incredibly similar parties have such polarised supporters that if their party's candidate lets them down, they still won't vote for anyone else.
And so it's not all that surprising that the very worst of this IP BS is coming from the US.

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Very similar in the UK actually. At the last election it looked as if our third party might actually make some serious gains, instead everyone panicked and thought "but the other ones might get in" and they retrenched to their long held positions. Which resulted in the worst showing for years for the third party.
Again there is so little actual difference between the policies of the parties (compared to the hyperbole and promises) that exercising your vote is a depressingly pointless formality.

MEGA

Megaupload is returning soon acording to Dotcom tweets, i wonder how he will do it, maybe generate a number for every file uploaded and you have to use that number to advertise the file, then mega and anyone else would not know what was in a file unless someone told them, i.e download the file 85763.rar to get the movie man on the moon...link to megaupload, lol the industry would have to monitor every site on the internet to identify the files to get them taken down, but even then they would have to prove the file was copyright material and they would have to download it and view it to check, yeah megaupload could force them to employ millions of people , fix the lack of jobs immediately.

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Lemley's brief is wrong. 18 U.S.C. 2 makes it a crime to induce another to commit a crime. That's the statute a person charged with criminal contributory infringement is actually charged under. Inducement of criminal copyright infringement has been a crime for over a century (the Marx Bros. were famously convicted of it). Lemley the advocate makes arguments that Lemley the scholar would disagree with. It's a shame, IMO.

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The Copyright Act does not expressly render anyone liable for infringement committed by another.

The commentary, and other statements of the Court, show that's not true. The phrase "to authorize" as found in Section 106 refers to secondary liability for copyright infringement. The statutory history makes it clear. Patry and Nimmer point this out too in their treatises.

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Judge Harvey is a District Court judge. They've already appealed his important rulings to the High Court.

Judge Winkelmann (in the High Court) has told them to prepare the evidence so if the ruling goes against the appeal, it will be ready to hand over promptly.

Winkelmann has additionally ruled the warrant was indeed illegal, and also has ruled that sending the information to the US was illegal.

She also ruled that the extradition process is not merely some kind of public ritual (my paraphrasing) but actually is a judicial process over with the courts have authority to enact judicial oversight. The only problem I have with that ruling is that anyone attempted to argue otherwise making such a ruling necessary in the first place.

The US people have a lot to fear from their government if the information obtained illegally is later allowed to be used in their courts, but that's up to the US courts.

I would say that this judge just talked himself off of the case. If I was the US government lawyers, I would be back in court have him removed from the case for be prejudice and expressing those views in public during a case that he is working on. It's pretty easy to see where he will come down on this case, based on his personal views.

Sadly, the whole delay process may be as a result of his personal views, which would be a sad day for the judicial process worldwide.

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licensing aside, being deaf in one ear (Particularly the left, as everything seems to assume that if you only want one speaker or whatever it should be the left one (WHY?)) is a major nuisance.

having other sensory issues, i somewhat dread the day they decide to make everything 3D by default with no off toggle. *sigh*

and i can grantee that if this nonsense keeps up at that point they Will charge an extra licence for the 3D stuff despite there being no way to get it without. (and then they'll encrypt it so you can't even strip it out... natch.)

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the only way to reverse it is to make the issue not protecting our rights to free speech and property and due process, not about preventing the expansion of their rents, but about attacking them.

probably not going to happen, not even sure quite how you'd got about it, but the only way you're going to get out of the 'we have to win every time, they only have to win once' trap is to pin down the 'they' and destroy them.

i wonder what it would take to start criminalising these industry associations? ripping apart the IP system? dismantling the multi-nationals and mega-corps.... all that good stuff.

again, i don't see it happening, but the only way to get off the defensive is to attack, and until that happens it's a losing battle, even if the war ends up won.

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despite having a multi-party system here in NZ, our media keep trying to spin the situation here as being like that. they keep encouraging 'strategic voting' (which is basically deliberately shooting yourself in the gut at point blank range to avoid a 1% chance of being shot in the head.)

of course it helps that, all though our center left and center right parties Can be fairly similar sometimes (there are some major differences, but there's also a lot of overlap.), the Other parties are all quite different in pretty much everything but the fact that only the extream-right party wants anything to do with the center right party... (honestly, if the center right party hadn't, through a combination of redrawn electorates and lack of voter participation, managed to essentially win a majority by themselves, we could actually have seen a coalition of 'everyone else' just to keep them out, given how things were going last election, which is quite unusual.)

biggest problem here is that if you don't want to vote for a party perceived as being on the 'left' (not really an accurate way of describing things at all here) you didn't really have much choice beyond' current problematic center-right' and 'more extream and obviously stupid right'. in the last election we had an actually sane center-right option... but it's really hard for new parties to get in. to the point where the outcome of the last election left a lot of people dissatisfied with the system. (when the party that gets the fourth most votes doesn't get in, but the 5th, 6th, and 7th do, there's something wrong with the system. in this case a stupid idea called a 'threshold'. if you don't get more than... 5% of the vote i think? which is about six seats... you don't get Anything. unless one of your members gets an electorate in their own right. in which case that threshold is outright ignored and you get assigned the number of seats your votes entitle you to, even if it's only one or two. )

Re: Re: And then Suddenly

ehh... when dealing with NZ the USG usually manages to find an excuse. not usually a very GOOD one, but an excuse none the less.

they got out of the only mutual defense treaty they ever signed by throwing a hissy fit when we refused to allow nuclear armed ships to dock in our ports. (never mind that the people were kind of leery about nuclear powered ones too, and that we were willing to let them anchor a ways out in our waters and still supply them and meet all our commitments and what not. (and the story about how NZ ended up with such a solid nuclear free stance is amusing as well. let's just say that it was partially by accident :D) ) which somehow lead to them refusing to allow our warships to dock in their ports at ALL. (this year, even, there was some joint exercise or celebration thing or i don't even know what up in hawaii. NZ ships were invited then promptly told to go dock in the civilian ports because they weren't allowed in the naval base, unlike everyone else.)

then there was the couple of thousand NZ dollar cruise missile built out of off the shelf consumer parts. some iranian guys get wind of this and try to contract to the guy did it to buy some. he contacts the NZ government to find out what he should do about this, is surprised to find he can legally do so. all parties agree that he should not do it (including him) he says he will not. he does not. all parties agree the law should be adjusted to make it illegal. this guy is, incidentally, in the process of setting up a business to supply the US and NZ military with some cheap, high tech stuff. (unmanned recon drones or something?). he's had some tax issues previously but has a payment plan all set up and is paying it all off. his plan for the missiles is to, again, sell them to the NZ and US militaries.

some brightspark in the US intelligence agencies hears about this and freaks out.

this leads, Directly, to the NZ government calling in all his overdue taxes at once (despite the payment plan in place as per SOP), resulting in bankruptsy for him, his business being shut down, hundreds of jobs lost, and the US and NZ governments missing out on their crazy cheap short range missiles and unmanned recon stuff.

NO ONE GAINED ANYTHING OUT OF THIS. the US actually shot itself in the foot.

so, the one built prototype missile is shipped out by a third party so he doesn't know what happened to it (so no one else can hold him responsible for anything to do with it) theoretically scrapped, the guy sets up a new payment plan for his taxes (apparently a much friendlier one, if memory serves) and life goes on. but still.

(it should be noted that he posted online somewhere that he had built this thing, and some proof that he had done so, as proof that it was possible. nowhere were the plans, parts used, or anything else of that nature available.)

also due to US influence: it is illegal to export cryptographic devises from New Zealand. this includes ANY sort of microchip or computational device. this sort of vaguely made sense during the early days of the computer and the cold war, but is nonsense these days.
(the official NZ government position on the subject? 'we have to cease it if you declare it. but if you don't mention it we make absolutely no effort to check for these things or enforce the law and the punishment is non-existent.'... seriously.)

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it gets better: not sure if this is still true, but it was a few years back: DVD players built for the NZ and Australian market were/are REQUIRED to play all discs regardless of region.

which means the cheap-arse budget ones always do.

spend your thousands of dollars on a top of the line model, though, and it's probably been made for Europe, the US, or Japan and just tweaked to the right region or whatever... Those will lock you out. (yes, it is silly.)

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Lemley's brief is wrong. 18 U.S.C. 2 makes it a crime to induce another to commit a crime. That's the statute a person charged with criminal contributory infringement is actually charged under. Inducement of criminal copyright infringement has been a crime for over a century (the Marx Bros. were famously convicted of it). Lemley the advocate makes arguments that Lemley the scholar would disagree with. It's a shame, IMO.

I believe you are both right and wrong here. There is an *inducement* standard for inducing someone to commit a crime, but that's not what Lemley is arguing in his brief. He's arguing that what's not in the law is contributory infringement for linking. And he's right. The difference is that 18 U.S.C. 2 is about inducing (or aiding, abetting, etc...) someone else into committing a *crime*.

But when talking about linking or merely pointing others to infringing works, the users themselves are not being "induced" into a criminal violation, but potentially a civil one. If those users are not, in fact, committing a crime -- and I've yet to see anyone suggest they are -- then there is no inducement issue.

Separately, it's worth pointing out that Lemley's brief refers to contributory infringement, but you're talking about inducement. While the two are related, inducement and contributory infringement are different. His issue in the roja case was not about inducement, but the reliance on the key elements found in civil case law for contributory infringement being used to suggest criminal violations, despite there being no such thing in the statute.

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There are a couple of major differences with respect to Blu-ray. The first is the licensing requirements for player manufacturers which don't allow a lot of discretion when it comes to restrictions. Although I don't know specifically about region locks, I know all the DRM "features" are mandatory. On the other hand that apparently I've read that at least one company has made one or two models capable of playing commercial (pressed) Blu-ray discs without Aggressive Anti Consumer Screwing (AACS) encryption which is a violation of the agreement.

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Here's the part from Patry's treatise explaining how the Supreme Court was wrong to say that the Copyright Act doesn't expressly render anyone liable for infringement committed by another:

Section 106 of the copyright act grants the copyright owner the right “to do and to authorize” the exercise of any of the six exclusive rights. The verb “to do” refers to direct infringement, e.g., consumer personally makes an illegal copy of a rented videocassette. The verb “to authorize” refers to contributory acts; there is no separate authorization right. [footnote 1: Venegas-Hernandez v. Asociacion De Compositores, Editores De Musica Latinoamericana (ACEMLA), 424 F.3d 50, 57-58 (1st Cir. 2005).]

Thus to infringe, one must violate, in the United States, one of the enumerated section 106 Rights. The legislative history of the 1976 Copyright Act describes a contributory infringer as a person “who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.” [footnote 2: H.R. Rep. No. 1476, 94th Cong., 2d Sess. 61 (1976); S. Rep. No. 473, 94th Cong., 1st Sess. 57 (1975) (emphasis added). The Supreme Court thus got it wrong in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984), when it said that the “Copyright Act does not expressly render anyone liable for infringement committed by another.”

7 Patry on Copyright § 25:87.

So yeah, don't give that one quote about the Copyright Act being silent about secondary liability much weight since it's demonstrably false.

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I believe you are both right and wrong here. There is an *inducement* standard for inducing someone to commit a crime, but that's not what Lemley is arguing in his brief. He's arguing that what's not in the law is contributory infringement for linking. And he's right. The difference is that 18 U.S.C. 2 is about inducing (or aiding, abetting, etc...) someone else into committing a *crime*.

But Lemley's argument was that "there is no statutory basis for the theory of criminal contributory infringement." That's wrong. It's 18 U.S.C. 2. As support, he then cites to the quote from the Sony case: "The Copyright Act does not expressly render anyone liable for infringement committed by another." As I explained just below, quoting Patry, that's wrong too. "To authorize" in Section 106 expressly renders people liable for the infringement caused by another. The legislative history explicitly explains how "to authorize" incorporates the judge-made doctrines of secondary liability. If a person contributes to a crime by linking, then that person is liable under 18 U.S.C. 2, and if they own a domain name that was used to distribute the links, that domain name can be forfeited. The idea that linking can't be a crime is rather silly. If you help someone else to commit a crime, you're a criminal too.

But when talking about linking or merely pointing others to infringing works, the users themselves are not being "induced" into a criminal violation, but potentially a civil one. If those users are not, in fact, committing a crime -- and I've yet to see anyone suggest they are -- then there is no inducement issue.

But the forfeiture statute, 18 U.S.C. 2323, says that property INTENDED TO BE USED for a crime can be forfeited. It is not necessary that there actually have been a crime. The government need only show by a preponderance of the evidence that it was used for a crime or that it was intended to be used for such.

Separately, it's worth pointing out that Lemley's brief refers to contributory infringement, but you're talking about inducement. While the two are related, inducement and contributory infringement are different. His issue in the roja case was not about inducement, but the reliance on the key elements found in civil case law for contributory infringement being used to suggest criminal violations, despite there being no such thing in the statute.

Both are types of secondary liability, which is all that matters. The Rojadirecta case concerns the issue of whether the domain names are property used OR INTENDED TO BE USED to commit criminal infringement. All the double-talk misses that point. Some case law from civil cases of infringement is applicable to that analysis, since criminal infringement law does borrow concepts from civil infringement. There's not some imaginary line bifurcating the two.

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i knew there was a reason i still bought everything on standard DVD. (except PS3 games. which i mostly buy second hand these days.)

well, you know, aside from it costing half as much or less and Blu-ray having no noticeable advantage for anything i can take advantage of (i have issues which render 3D worse than useless and surround sound, or even stereo, pointless.)

and the current 'government' has the strongest and least assailable position yet seen since the introduction of MMP... what it wants, happens (i cannot recall. it may or may not need to get One additional person to vote with it to pass stuff. unfortunately, there's always at least one sucker on any given issue). which wouldn't be too bad if it weren't the biggest collection of pro-corporation, anti-citizen, short-term thinking, pocket-lining, cronyistic MORONS available.

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I'm in pretty much the same boat when it comes to 3D. The most 3D effect I've ever gotten was during the closing credits of a couple movies. And even though my hearing is excellent my stereo is an older model without HDMI or 6 channel inputs which I refuse to replace because music sounds so good through it. I don't even own a HDTV. I'm still watching an old 27-inch analog monster.

The irony is I had to buy a Blu-ray player and burner so I could write technical guides for the technology. Which is okay since I find that side of things more interesting anyway.

Does anyone know what he actually said?

I've looked at original story and I can't for the life of me figure out who added the "[the]" in brackets. Did Judge Harvey say, "We have met the enemy and he is the U.S"? Or did he say, "We have met the enemy and he is U.S."?

Region codes

Sometimes there's an obvious workaround that is so obvious that it's a puzzle that nobody has noticed. Region-restricted DVDs are as common as dirt, and region-free DVD players can be purchased in Chinatown for only $59 to play your British or Australian DVDs. So what happens when region-restricted DVD players are banned? You just pop them into your BluRay player which is region-free.